In the latest twist in the long-running ATS and TVPA suit against him, former Somali Defense Minister Mohamed Ali Samantar filed on Monday for certiorari after the Fourth Circuit's surprising decision last October denying him immunity on the basis that "officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant's official capacity."
As I noted at the time, the Fourth Circuit's recognition of a jus cogens exception to traditional immunities for foreign official acts is likely to be worrisome to Executive branch lawyers (especially at the Defense Department and intelligence agencies) because it may provide a precedent for foreign courts to deny immunity to U.S. military or intelligence personnel who may be charged or sued for jus cogens crimes or civil violations (such as targeted killings) in foreign countries. Moreover, as Samantar argues persuasively in his brief, the Fourth Circuit decision is likely to make the Circuit "a magnet for suits against foreign officials, who may be sued whenever they pass through Northern Virginia to reach Washington, D.C." For these reasons, despite the horrific facts in the Samantar case, the Justice Department may want to support Samantar's cert petition, especially if the Supreme Court requests the views of the Solicitor General. I provide more details below the break.
Samantar's brief argues that the Fourth Circuit's decision creates a circuit split about whether the common law recognizes a jus cogens exception to foreign official immunity in civil suits. The Second, Seventh, and DC Circuits have concluded, directly or indirectly, that there is no jus cogens exception to foreign official immunity. For example, in Matar v. Dichter, the Second Circuit concluded that former Israeli intelligence chief Avi Dichter enjoyed immunity in an ATS/TVPA lawsuit, after the State Department determined (in a letter I signed as Legal Adviser) that he enjoyed immunity for his official acts; the Second Circuit concluded that jus cogens claims do not withstand foreign sovereign immunity.
As Samantar also points out in his brief, recognition of a jus cogens exception will swallow the immunity rule in most ATS/TVPA cases. Samantar notes that 31 of 34 ATS/TVPA cases decided between 2010 and 2013 involved alleged jus cogens violations. District courts in the Fourth Circuit will apparently be unable to dismiss ATS/TVPA suits alleging jus cogens violations by foreign government officials, even if the Executive branch files a suggestion of immunity.
Accordingly, it does seem likely that human rights litigators will start bringing more ATS and TVPA suits against current and former Israeli, Chinese, and other foreign government officials in the Eastern District of Virginia, even though previous suits had been dismissed in New York and Washington on the basis of official immunities.
As Lawfare readers know, the Supreme Court has already considered the Samantar case previously. In 2010, the Supreme Court affirmed the Fourth Circuit's holding that the Foreign Sovereign Immunities Act applies only to foreign governments and their agencies and instrumentalities, and not to the immunities of individual foreign government officials. The position of the Executive branch (both before and after the Supreme Court's decision) has been that the immunities of foreign government officials are governed by common law (not statutory law), based on suggestions of immunity provided to the courts by the Executive branch.
After the Supreme Court's 2010 decision in Samantar, the case was remanded to the Eastern District of Virginia. The Justice Department then filed a statement of interest concluding that Samantar did not enjoy immunity, because the U.S. Government did not recognize any government any Somalia that could request immunity for him, and also because Samantar had settled in the United States. The district court concluded that the Justice Department's determination was binding and that Samantar was not entitled to immunity.
The Fourth Circuit affirmed the determination of non-immunity, but declined to accept the Executive branch's determination as binding. Instead, the Fourth Circuit held that there can be no foreign official immunity for jus cogens violations.
As noted above, the Executive branch is likely to be deeply troubled by the implications both for U.S. Government officials and for foreign government officials of the Fourth Circuit's recognition of a jus cogens exception to official immunity. But the Executive branch is likely to be equally troubled by the Fourth Circuit's rejection of Executive branch immunity (or non-immunity) determinations as binding. The Justice and State Departments are unlikely to want to allow Executive branch determinations to be binding in some circuits but not others.
This latest chapter of the Samantar saga is further complicated by the fact that the Obama Administration recently recognized the Government of Somalia, and the Prime Minister of Somalia has now formally requested immunity for former defense minister Samantar (in a letter to Secretary Kerry on February 26). This development eliminates one of the two grounds for the State Department's previous determination of non-immunity for Samantar. The Executive branch may still persist in concluding that Samantar does not enjoy immunity on the novel grounds that he has become a U.S. resident. But the Executive branch may be reluctant to make the unprecedented legal argument that an official foreign government request for immunity for its officials may be rejected, given the reciprocal implications for U.S. Government officials who may be sued in other countries (even if former U.S. officials are unlikely to take up residence in foreign countries).
For background, I have described the practice of the Office of the Legal Adviser with respect to official acts immunity, and a potential jus cogens exception, in this article in the Vanderbilt Journal of Transnational Law.